Article Index

The day
after Israel launched its high-intensity bombardment campaign against Gaza on
July 8, 2014, other Israeli public figures continued the incitement against
Palestinians. During a Knesset speech, Deputy Speaker Moshe Feiglin called on
Israel to cut off all electricity to the Gaza Strip. “The blood of a dialysis patient in
Gaza is not redder than the blood of our IDF soldiers who will, God forbid,
need to enter [Gaza],” he stated. During the same session, Knesset
Member Elazar Stern stated: “When
we shoot at a house in Gaza, it is also in order for Gazans to live better.”
Separately, Knesset member Ayelet Shaked wrote, "What’s so horrifying
about understanding that the entire Palestinian people is the enemy?...
The mothers of the martyrs... should follow their sons, nothing would be more
just. They should go, as should the physical homes in which they raised the snakes.
Otherwise, more little snakes will be raised there.” Rather than charge these
legislators with incitement, three Palestinian Knesset members were expelled
for criticizing Israel’s bombardment of Gaza.

Israeli
authorities have not seriously attempted to quell this incitement against
Palestinians. Feiglin continues to publicly call on Prime Minister Netanyahu to
commit what amount to war crimes in Gaza, specifically calling for the
internment of Palestinians in concentration camps in Sinai and the destruction
of the civilian infrastructure in Gaza. TheTimes of Israel, a widely
read Israeli newspaper, even went so far as to post (and later take down) an
online op-ed entitled “When Genocide is Permissible.”

The
National Lawyers Guild and endorsing organizations request that the Office of
the Prosecutor investigate whether members of the Israeli military
establishment and political leadership have committed violations under the Rome
Statute with respect to the following:

War
Crimes

(1)Willful
killing: Israeli forces have killed over 2,000 Palestinians
(more than 80 percent civilians, including over 470 children) according to the
non-governmental organization Palestinian Centre for Human Rights. Israel used
155-millimeter artillery, which, according to the non-governmental organization
Human Rights Watch, is "utterly inappropriate in a densely populated area,
because this kind of artillery is considered accurate if it lands any place
within a 50-meter radius."

(2)Willfully
causing great suffering or serious injury to body or health:
Nearly 10,000 Palestinians of Gaza (about 2,200 of them children) have been
wounded. UNICEF hassaidthe
Israeli offensive has had a "catastrophic and tragic impact" on
children in Gaza; about 373,000 children have had traumatic experiences and
need psychological help. The UN Relief and Works Agency for Palestine Refugees
(UNRWA) said: "There's a public health catastrophe going on.” UN shelters,
medical facilities, the only power plant, water distribution facilities, and
sewage plants have all been targeted, in some cases, more than once and despite
repeated calls by UN officials to Israel reporting that civilian shelters were
located near Israeli military activity.

(3)Unlawful
and wanton, extensive destruction and appropriation of property not justified
by military necessity: Tens of thousands of Palestinians havelost their homes. More than 1,300
buildings were destroyed and 752 were severely damaged. Damage to sewer and
water infrastructure hasaffectedtwo-thirds
of the people of Gaza. The non-governmental organization Oxfamdescribedthe
level of destruction as "outrageous ... much worse than anything we have
seen in previous [Israeli] military operations." The President of the
International Committee of the Red Cross Peter Mauer has said “I’ve never seen
such destruction ever before.” Israel has apparentlyreducedGaza's
habitable land area by 44 percent, establishing a "no-go" zone for
Palestinians three kilometers wide along the fence that surrounds the strip on
the north and east; 82 of 147 square miles of land will now be off limits to
its owners and others.

(4)Willfully
depriving a prisoner of war or a civilian the rights of fair and regular trial:
Over 1,000 Palestinians were arrested by Israeli forces in June and July 2014,
according to Addameer-Prisoner Support and Human Rights Association. Prisoners
include 27 members of the Palestinian Legislative Council, dozens of women,
journalists, activists, academics, and 62 former prisoners previously released
in a prisoner exchange. More than 450 prisoners are being held without charge
or trial under administrative detention, most of them arrested during the
recent military operation.

(5)Intentionally
directing attacks against the civilian population, civilian objects or
humanitarian vehicles, installations and personnel: Israeli
forces violated the principle of "distinction," which forbids
deliberate attacks on civilians or civilian objects. Israeli forcesbombed142
schools (89 run by the United Nations), including six UN schools in which
civilians were taking refuge, the coordinates of which had been repeatedlycommunicatedto
Israeli officials. Israeli forces shot and killed fleeing civilians and those
seeking to recover the bodies of the dead. (Warnings, which must effectively
give civilians time to flee before bombing, do not relieve Israel from its
legal obligations not to target civilians.) Israeli forces repeatedly bombed
Gaza's only power plant and other infrastructure, which are reportedly beyond
repair. Israeli forcesbombedone-third
of Gaza's hospitals, 14 primary healthcare clinics, and29 ambulances. At least five medical staff were
killed and tens of others were injured. Israeli shelling completelydestroyed41
mosques and partially destroyed another 120.

(6)Intentionally
launching attacks with knowledge they will cause incidental loss of life or
injury to civilians or damage to civilian objects or long-term severe damage to
the natural environment, if they are clearly excessive in relation to the
anticipated military advantage: The principle of
"proportionality" forbids disproportionate and excessive civilian
casualties compared to the claimed military objective. There is strong evidence
to suggest that Israel has been applying the “Dahiya Doctrine” discussed inthe UN Human Rights Council [Goldstone] Report,
following the 2008-2009 Israeli operation in Gaza known as “Cast Lead.” The
Dahiya Doctrine is "the application of disproportionate force and causing
of great damage and destruction to civilian property and infrastructure, and
suffering to civilian populations" and directly violates the principle of
proportionality. Responding to rocket fire from Gaza with 155-millimeter
artillery and bombings by F-16s in densely populated areas is disproportionate.

(7)Attacking
or bombarding undefended towns, villages, dwellings or buildings, or
intentionally attacking religious, educational and medical buildings, which are
not military objectives: On July 20, 2014, Israeli forces
virtually flattened the small town of Khuza'a.

Genocide

As
defined by the Rome Statute (Article 6), “genocide” means any of the following
acts committedwith the intent to destroy, in whole
or in part, a national, ethnical, racial or religious group:

(a)killing
members of the group;(b)causing serious bodily harm to members of the group;(c)deliberately inflicting on the group conditions of life
calculated to bring about its destruction in whole or in part:
See above regarding civilian casualties. In light of the fact that Palestinians
in Gaza had no ability to flee for safety, it must be assumed the responsible
Israeli officials knew that huge casualties and destruction of civilian property
and infrastructure were certain during the massive bombardment by land, air and
sea of the occupied Gaza Strip. With the repeatedly inciting public statements
made by Israeli officials before and during the course of Operation Protective
Edge and the history of Israel’s repeated bombardment of Palestinian refugee
camps and populations in Lebanon and in Gaza, the National Lawyers Guild and
endorsing organizations specifically request that the Office of the Prosecutor
determine whether Israeli officials may be implementing a plan to destroy the
Palestinian population, at least in part.

Crimes
against Humanity

As
defined by the Rome Statute (Article 7), “crimes against humanity” means any of
the following when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:

(a)Murder;(b)Persecution
against a group or collectivity based on its political, racial, national,
ethnic or religious character;(c)The
crime of apartheid (inhumane acts committed in the context of an institutional
regime of systematic oppression and domination by one racial group over another
racial group, with the intent to maintain that regime).See above regarding civilian
casualties.

In
light of the public statements and prior reports and investigations into
Israeli operations in Gaza, it appears that crimes against humanity have been
committed and are ongoing.

Israeli
forces have killed, wounded, summarily executed and administratively detained
Palestinians, Hamas forces and civilians alike. Israeli forces intentionally
destroyed the infrastructure in Gaza with apparent knowledge that Palestinians
were present. UN Secretary General Ban Ki-moonsaid: "The massive death and
destruction in Gaza have shocked and shamed the world." He added
that the repeated bombing of UN shelters facilities in Gaza was
"outrageous, unacceptable and unjustifiable."

In a
system of control that many prominent South African political leaders have
described as worse than apartheid-era South Africa, Israel has been keeping
Palestinians in Gaza caged in what amounts to "the world's largest open
air prison." Israel (with the help of Egypt at Rafah) controls all ingress
and egress to Gaza, and limits the access of Palestinians living there to
medicine and other essentials. In the West Bank, it subjects Palestinians
to arbitrary arrest and long-term administrative detention; expropriates their
property; destroys their homes, crops and trees; and maintains separate areas
and roads, segregated housing, and different legal and educational systems for
Palestinians and Jews. Israel maintains an illegal barrier wall, ignoring the
2004 advisory opinion by the International Court of Justice that it encroaches
on Palestinian territory in the occupied West Bank and East Jerusalem, where
Israel has built hundreds of illegal Jewish-only settlements with more than
500,000 residents.

The
Palestinians who live in Gaza are predominantly refugees from what is today
Israel and are prohibited from returning to their homes and property there in
contravention of UN resolutions and international law. They are prevented from
exercising their right to return solely because they are not Jews; on the other
hand, Jews from anywhere in the world are eligible for automatic Israeli
citizenship upon arrival under Israel’s “Law of Return.”

Aiding
and Abetting Rome Statute Violations

The
National Lawyers Guild and endorsing organizations submit that for there to be
true justice and accountability, the investigation should include whether
certain U.S. officials have aided and abetted the commission of war crimes,
genocide, and crimes against humanity in Gaza. An individual can be convicted
of a war crime, genocide or a crime against humanity in the International
Criminal Court if he or she "aids, abets or otherwise assists" in the
commission or attempted commission of the crime, "including providing the
means for its commission" (Article 25). By transferring financial
assistance, weapons and other military aid to Israel, members of the U.S.
Congress, President Barack Obama, and Defense Secretary Chuck Hagel have
aided and abetted the commission of war crimes, genocide, and crimes against
humanity by Israeli officials and commanders in Gaza.

U.S.
military aid to Israel

On July
20, 2014, in the midst of its criminal behavior in Gaza, Israelrequestedadditional
ammunition, including 140mm tank rounds and 40mm illumination grenades. Three
days later, the U.S. Defense Department authorized munitions caches stored
inside Israel -- the War Reserve Stockpile Ammunition -- to be transferred to
the Israeli authorities. In addition, in early August 2014, the US Congressoverwhelmingly passed, and President Obama
signed, an appropriation of $225 million for Israel's Iron Dome missile defense
system. The Senate vote was unanimous. With no debate, the House of
Representatives voted 395 to 8 to approve the deal.

Prospects
for criminal accountability

Neither
Israel nor the United States is a party to the Rome Statute. But if Palestine
accedes to the statute, the ICC could exercise jurisdiction over crimes
committed by Israelis and Americans in Palestinian territory. It is
unlikely that the ICC could take jurisdiction pursuant to a UN Security Council
referral in light of the fact that the United States has veto power in the
Council. The National Lawyers Guild and endorsing organizations therefore
respectfully request that the ICC prosecutor initiate her own investigation.

The
2009 Declaration of the Government of Palestine to the ICC pursuant to article
12(3) of the Rome Statute provides the jurisdictional basis for the Office of
the Prosecutor to open an investigation under Article 15. Any prior
doubts concerning the status of Palestine as a state within the meaning of
Article 12(3) have been resolved since the United Nations recognizedthe
State of Palestine and gave it non-member observer state status in November
2012. There is no legal requirement for a further declaration in order for an
investigation to be initiated.

The
National Lawyers Guild and endorsing organizations submit that all the
requirements for the initiation of an investigation pursuant to article 15 have
been clearly met. The “information available to the prosecutor provides,”
at the very least, “a reasonable basis to believe that … crime[s] within the
jurisdiction of the Court ha[ve] been or [are] being committed” (article
53(1)(a). The “gravity of the crime[s] and the interests of the victims”
warrant an investigation, and there can be no doubt that such an investigation
would serve the interests of justice (article 53(1)(c)).

The
initiation of an investigation would send a clear message to all those involved
either in committing or in aiding and abetting of the aforementioned crimes
that they stand to be held personally accountable for their actions. This
could help end the continuing breaches of international law and end the
impunity that has underpinned the ever increasing violence in the region, and
that has caused – and continues to cause – extreme suffering to its civilian
population.

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